Naarah Betulah - Chapter One

Introduction to Hilchos Naarah Betulah

They include five mitzvot: three positive commandments and two negative commandments. They are:

1) That a seducer [of a virgin maiden] be fined;
2) That a man who rapes [a virgin maiden] should marry her;
3) That the rapist should not divorce the woman he marries;
4) That the wife of a man who issued a slanderous report about her should remain married to him forever;
5) That a man who issues a slanderous report about his wife should not divorce her.

What is meant by a seducer, and what is meant by a rapist? A seducer is one who enters into relations with a girl with her consent; a rapist is one who takes her by force.

Whenever a man entered into relations with a woman in a field, we operate under the presumption that he raped her, and apply those laws4 unless witnesses testify that she entered into relations with him willingly.5 Whenever a man enters into relations with a woman in a city, we operate under the presumption that she consented, because she did not cry out, unless witnesses testify that she was raped - e.g., he pulled out a sword and told her, "If you cry out, I will kill you."

When a girl who was seduced does not want to marry the seducer, or her father does not want to give her in marriage to him,6 or if [the seducer] does not want to marry her, he may pay the fine and depart. We do not force him to marry her.7

If they do desire [to wed], and he marries her, he does not pay a fine.8 Instead, he writes her a ketubah, as is written for other maidens.9

When, however, a woman who is raped or her father do not desire that she marry the rapist, they have that prerogative. [In such an instance,] he must pay the fine and depart. If she and her father desire [that the marriage take place], but he does not desire, we force him to marry her, aside from paying the fine, as [Deuteronomy 22:29] states: "He must take [the maiden] as his wife"; this is a positive commandment.10

Even if the girl is lame, blind, or afflicted with leprosy,11 he is forced to marry her and he may never take the initiative in divorcing her,12 as [the above verse continues]: "He may not send her away as long as he lives." This is a negative commandment.13

[This girl] is not granted a ketubah. For our Sages instituted the requirement of a ketubah so that [a husband] will not consider divorce a frivolous matter. [In this instance this is unnecessary, because] the man cannot divorce [his wife].

If the girl he raped was forbidden to him,14 even if the prohibition stems from a positive commandment, or she was a sh'niyah [or forbidden by other Rabbinic prohibitions],15 he should not marry her. Similarly, if he discovers adulterous behavior16 on her part after he marries her, he should divorce her. [These concepts are implied by the phrase: "He must take [the girl] as his wife" [which our Sages interpreted to mean]: "She must be fit to be his wife."

When a High Priest rapes or seduces a virgin maiden, he should not marry her, because he is commanded to marry a virgin,17and at the time he marries this girl she is not a virgin.18 If he marries [this girl], he must divorce her.

Although it is said with regard to a rapist: "He may not send her away as long as he lives," since [this prohibition] is preceded by a positive commandment, as it is said, "He must take [the girl] as his wife," the Torah made the prohibition [rectifiable] by the observance of the positive commandment. Thus, this is a negative commandment [whose violation] can be rectified by [the observance of] a positive commandment. Lashes are not given [as punishment for the violation of such a commandment] unless one does not fulfill the positive commandment, as will be explained in Hilchot Sanhedrin.19

Therefore, when a rapist violates [this prohibition] and divorces [his wife], he is compelled to remarry her and is not punished by lashes. If, however, his divorcee dies or is consecrated by another man20 before he remarries her, or if he is a priest, who is forbidden to marry a divorcee, he should be punished by lashes. For he transgressed the negative commandment, and is unable to fulfill the positive commandment associated with it.21

Neither a rapist nor a seducer is liable to pay the fine unless he engages in relations in the ordinary fashion,22 and the relations are observed by witnesses.23 A warning is not necessary.24

At what age is a girl fit to be paid a fine? From the age of three25 until she reaches the age of bagrut.26 If a man engages in relations with a girl less than three years old, the relations are not significant.27 If he engages in relations with her after she reaches the age of bagrut, he is not fined. For [Deuteronomy 22:28] states: "A virgin maiden," thus excluding a girl who has reached maturity.

A fine need not be paid [because of relations] with the following women: a bogeret, a girl who has dissolved a marriage through mi'un,29 an aylonit,30 a mentally incompetent girl, a deaf mute,31 a girl who was reputed to have conducted herself immodestly while young, concerning whom two witnesses testify that she sought sexual relations with them,32 a girl who was married and divorced, but is still a virgin maiden.33

When, by contrast, [a girl] is divorced after merely being consecrated,34 a fine must be paid - and she is entitled to it35 - if she is raped. If she is seduced, she is not entitled to a fine.36

[The following rules apply with regard to] a convert, a girl who was taken captive, and a [Canaanite] maidservant who was freed:37 If she was converted, redeemed or freed before she reached the age of three, she is entitled to a fine.38

If she was three years old [or older] when she was converted, redeemed or freed, she is not entitled to a fine. Since relations that she engages in at this time are significant, she is placed into the category of non-virgins.

[The following rules apply when] the virgin [who was raped or seduced] was forbidden to the rapist or the seducer. If the prohibition was punishable by karet - e.g., she was his sister, his aunt, in the niddah state or the like - or she was forbidden by virtue of a negative commandment [that does not involve either karet or execution], he is not liable for a fine if he was given a warning.39 [Instead,] he should be lashed. [The rationale is that] a person is never punished [for the same transgression] by both lashes and a monetary assessment.

If he was not warned, since he is not to be given lashes, he should pay the fine.

[When the girl raped] was forbidden because of a positive commandment, or she was a sh'niyah or forbidden because of another Rabbinic commandment, [the rapist] is obligated to pay the fine whether he was warned against the transgression or not, because he is not punished by lashes.

[When the girl raped] was forbidden because of a prohibition punishable by execution by the court - e.g., she was his daughter, daughter-in-law,40 or the like - he is not liable for the fine, regardless of whether or not he received a warning.

[This is derived from Exodus 21:22, which] states: "If there will not be a [fatal] accident, he should be punished."41 Implied is that if there is a [fatal] accident, no punishment should be levied.42 [This applies] although the woman was killed unintentionally, [i.e.,] the man did not intend to strike her,43 as it is written [Ibid.]: "If men strive and a woman receives a blow...." This teaches that with regard to a [fatal] accident, Scripture did not differentiate between an intentional and unintentional act to free him from monetary obligation.

And [Leviticus 24:18-21] says: "A person who [fatally] strikes an animal shall reimburse [its owner] for it, and one who [fatally] strikes a man must die." Just as Scripture did not distinguish between intentional and unintentional action for killing an animal to make him liable for payment, so too, it did not distinguish between intentional and unintentional action for killing a person to free him from financial obligation.

If [a girl] dies after she [was seduced or raped], [the seducer or the rapist] is not liable for the fine, [as implied by Deuteronomy 22:29]: "the man who raped her must give the maiden's father...." [The verse states] "the father of the maiden," and not "the father of the dead maiden." [This applies] when she dies before the case came to court.45

See Hilchot Eruvin 1:12 and Hilchot Shekalim 1:2, where the Rambam describes the weight of this coin. According to the figures he gives in his Commentary on the Mishnah (Bechorot 8:8), in contemporary measure a sela is 19.2 grams. According to the Piskei Siddur of Rabbi Shneur Zalman of Liadi, it is 20.4 grams.

See Sefer HaMitzvot (Positive Commandment 220), which describes this mitzvah as "the commandment we have been given with regard to a man who seduces [a virgin]." (See also Sefer HaChinuch, Mitzvah 61.)

Both in the Mishneh Torah and in Sefer HaMitzvot, the payment of the fine by a seducer, a rapist and one who issues a slanderous report appears to be included in the same mitzvah (Nachalat Efrayim).

Hilchot Sanhedrin 5:8 states that the cases involving laws governing a seducer and a rapist are to be tried by judges with semichah, a qualification that is not possessed by Rabbinical judges in the post-Talmudic period. The Shulchan Aruch (Even HaEzer 177:2) states that in the present age, a seducer and a rapist should be compelled to satisfy the girl's father for the damage they have caused.

As mentioned in the following halachah, a rapist must marry the woman he raped, while a seducer need not. And, as mentioned in Chapter 2, Halachah 1, a rapist must also reimburse the woman for the pain and embarrassment he caused her.

The Ra'avad objects to the Rambam's ruling, explaining that unless there are witnesses to the relations, the woman has no way of proving her claim against the man. The Migdal Oz explains that this refers to an instance where witnesses saw the man and the woman engage in relations from afar and were not able to determine whether she was seduced or raped.

The assumptions mentioned by the Rambam are based on the passage (stated with regard to a consecrated maiden, Deuteronomy 23:24-27): "This is the law when a virgin maiden was consecrated to one man and another man meets her in the city and has relations with her. Both of them should be executed, [i.e., we assume the girl consented]... because she did not cry out in the city.... If the man encountered the maiden who was consecrated in the field..., the girl has not committed a sin... for the man attacked her in the field..., where there was no one to come to her aid."

I.e., she is given a ketubah of 200 zuzim, as is given to other virgin maidens (Hilchot Ishut 11:4), despite the fact that she was not a virgin at the time of the marriage (Ma'aseh Rokeach). Mishneh LaMelech explains that this concept is derived from Exodus 22:16, which states: "he must pay the usual dowry money for virgins."

Tosafot (Yevamot 60a) and the Nimukei Yosef differ and maintain that the girl is given a ketubah of only 100 zuzim as is given to non-virgins.

For a husband is forbidden to engage in marital relations with an adulterous wife, as stated in Hilchot Ishut 24:17. See the Beit Shmuel 177:4, who emphasizes that the intent is that witnesses observed the actual commission of adultery, not merely immodest behavior that suggests adultery.

I.e., vaginal and not anal intercourse. The Rambam's ruling is not accepted by the Ra'avad and Rabbenu Asher, who cite Kiddushin 9b-10a in support of their conception.

The Kiryat Sefer supports the Rambam's ruling, based on Sanhedrin 73b, which states that the man is not liable until he inserts the entire penis into the vagina, explaining that it is only then that the woman will lose her virginity. Since she will never lose her virginity through anal intercourse, the man is not held liable.

Although there are times when the Hebrew term na'arah, translated as "maiden," has a more specific meaning (see Hilchot Ishut 2:1), Ketubot 40b explains that in this instance the intent is also a girl below the age of twelve.

Although most Rishonim agree with the Rambam, there are, however, significant authorities who rule that a fine need not be paid until the girl reaches the age of na'arut.

Generally, this refers to a girl of the age of twelve and a half who has manifested signs of physical maturity. If a girl does not manifest signs of physical maturity, she is not considered a bogeret until the age of 20 or 35. See Hilchot Ishut 2:1-4.

As mentioned in Hilchot Gerushin 11;1, when a girl below the age of majority marries without being consecrated by her father, she can nullify the marriage without a formal divorce. This is called mi'un. When she takes this option, even if we know that she is still a virgin, she is not entitled to receive the fine because she has been married previously.

A woman who does not manifest female sexual characteristics, as explained in Hilchot Ishut 2:5. Since an aylonit never becomes a na'arah, she is not entitled to a fine (Kessef Mishneh). The Ra'avad maintains that an aylonit should receive a fine until she reaches the age of twenty.

Since they are not mentally competent, we fear that they were raped previously without their knowing about it. Compare to Hilchot Ishut 11:4,8. Note the Ra'avad, who states that a person who rapes or seduces a deaf mute is liable for a fine.

Although Deuteronomy 22:28 speaks of the fine being paid to the girl's father, from the fact that the verse mentions "a maiden who was not consecrated," Ketubot 38a derives that when a maiden has been consecrated, the fine should be paid to the woman who was raped.

Since she consented to relations, she waives the payment of the fine. See Chapter 2, Halachot 10-11.

Note Rav David Arameah, who states that this applies only when she is a na'arah. If she is still a minor, her father receives the fine, and she does not have the potential to waive it through her consent.

As the Rambam states in Hilchot Ishut 11:2, we operate under the presumption that these women have engaged in relations previously: a convert and a Canaanite maidservant because non-Jews' morals are considered to be weak, and a woman held captive because she is at the mercy of her captors.

Although the general principle stated in this halachah is accepted without dispute, the particular case of the pregnant woman is a matter of question. The Rambam himself states (Hilchot Chovel UMazik 4:5-6) that if the man did not intend to strike the woman, he is liable to pay damages to her heirs.

In that source, he explains that the leniency granted by the verse applies when the man intended to strike the woman, but did not intend to kill her.

Naarah Betulah - Chapter Two

The fine of 50 silver pieces represents merely the payment for the pleasure of sexual relations. In addition, a seducer is obligated to pay for embarrassment and damages1 in addition to the fixed amount mentioned by the Torah.

A rapist, moreover, also pays for the pain [he caused the girl]. [A seducer is not required to make this payment,] because a girl who willingly engages in relations does not [suffer] pain. A girl who is raped does, as reflected by [Deuteronomy 22:29]: "because he violated her."2

The fine is the same in all instances. Whether one has relations with the daughter of the High Priest, or the daughter of a convert or a bastard,3 the fine is 50 silver pieces. The amount paid for embarrassment, damages and pain is not uniform, however. Instead, the amount must be evaluated [by the court].

How is this evaluation made? With regard to embarrassment, everything is dependent on the identity of the person who is embarrassed, and the identity of the person who embarrasses her. The embarrassment suffered by a girl of high repute from a family of known lineage cannot be compared to the embarrassment suffered by a poor, ignoble maiden.4 And the embarrassment suffered at the hands of an important person of great stature cannot be compared to that suffered at the hands of a base and empty fellow.5

On this basis, the judges consider the stature of [the rapist or the seducer] and his victim. They evaluate how much a father and the girl's family would give to prevent [these relations] from taking place with this individual. This is the amount [the man] is obligated to pay.

Damages [are evaluated] according to [the girl's] beauty. We look at her as if she were a maid-servant being sold in the marketplace: what price would she fetch as a virgin, and what price would she fetch as a non-virgin. For a man would like to buy a virgin maid-servant to give him to his servant, whose welfare and satisfaction he desires. [The rapist or the seducer] should pay the difference in the price.

The compensation for pain is evaluated based on her youth and the size of her body, and his age and the size of his body.6 We evaluate how much a father would be willing to pay so that such [a daughter] would not suffer pain from such [a man], and [the rapist is obligated to] pay [this amount].

A seducer must compensate [the girl's father] for the embarrassment and damages immediately. He is not, however, required to pay the fine unless he does not marry [the girl], as [Exodus 22:16] states: "If her father refuses to allow him to marry her, then he must pay...."

A rapist, by contrast, must make all four payments and marry her immediately. Therefore, whenever the woman desires to divorce7 or when she becomes widowed, she does not receive anything.8

[The following laws apply when] two men entered into relations with her, one through vaginal intercourse and one through anal intercourse. If the man who had anal intercourse with her was first, he is liable for embarrassment and for damages.9 If he was second, he is liable only for embarrassment, because she has already suffered damages.

The one who engaged in vaginal intercourse, whether first or last, is liable for the fine and all other payments. Nevertheless, the embarrassment and damages to a girl who had never engaged in relations at all cannot be compared to the embarrassment and damages to a girl who has engaged in anal intercourse.

We have already mentioned10 the girls for whom a fine need not be paid: They are ten: A bogeret, a girl who dissolved her marriage via mi'un, one who was divorced, an aylonit, a mentally incompetent girl, a deaf mute, a convert, a girl who had been taken captive, a freed slave, and one who has a tarnished reputation. A fine must be paid for all other girls.

Whenever a fine is required to be paid for a girl, compensation is also required for embarrassment and damages, and if she was raped she must also be compensated for the pain.

Conversely, whenever a fine is not required to be paid for her, she is not entitled to compensation for embarrassment and damages11 if she is seduced or raped. Exceptions to this are a bogeret, a girl who had dissolved her marriage via mi'un, a mentally incompetent girl and a deaf mute. [If they are seduced, no payment is required at all.]

What is implied? If a man rapes a bogeret or a girl who had dissolved her marriage via mi'un, although a fine is not required to be paid, compensation is also required for embarrassment damages and pain.12 And a man who rapes a a mentally incompetent girl or a deaf mute is required to make compensation for pain.13 One who seduces any of these girls is not liable at all.14

A person is not ever liable to pay a fine because of his own admission. Instead, he is made liable by the testimony of witnesses.15 Therefore, [if a man] says: "I raped or seduced the daughter of so and so," he is not liable to pay a fine. He must, however, make restitution for the embarrassment and the damages [he caused].16

Similarly, when a maiden files a legal claim against a man, saying "You raped me," or "You seduced me," and he denies the matter entirely, he is required to take a Rabbinic oath17 to support his claim, for if he admits his culpability, he would be liable for the embarrassment, the damages and the pain.18

If a girl claims, "You raped me," and the man claims, "No, I seduced you," he is required to take an oath mandated by Scriptural law with regard to [the compensation for] the pain, and he must pay the damages and the embarrassment. [The oath is required] because he admitted a portion of the claim [made against him], as will be explained in [the section dealing with that subject].19

The three payments made because of seduction, and the four payments made because of rape are made to the girl's father, for all the monetary benefit that accrues during a girl's youth belongs to her father.20

If her father is no longer alive [at the time of the rape or the seduction], [these payments are made] to her.21

When a girl who was raped or seduced does not file a claim until [either] she reaches bagrut, she marries, or her father dies,22 she herself is entitled to the three or four payments [mentioned above].23

If she appeared in court and filed a claim for payment, and then she reached bagrut or she married, the father is entitled to the payments. If the father dies after she files a claim for payment in court, the payments belong to her brothers, for they are her father's heirs. [The rationale is that] once she files a claim for payment in court, her father is considered to have acquired the payments.

When a girl was consecrated and then divorced, she is entitled to the fine, but only that.24 If she was raped or seduced, and afterwards, she becomes consecrated to another [man], her father is entitled to the fine and the damages, for consecration does not take a girl out of her father's domain [and nullify his rights over her].

I maintain that [the intent of] the Torah's statement [Leviticus 19:29], "Do not defile your daughter to have her play the harlot," is that a father should not say: "Since the obligation of the Torah for a seducer or a rapist was solely that he should give the father money, I will hire my virgin daughter to someone to have relations with her for whatever price I desire, or I will allow him to have relations for her without charge. For a man has the right to forgo monetary rights to him to any person he desires." To counter such thoughts, it is written: "Do not defile your daughter."

The Torah obligates a rapist and a seducer to pay money rather than be punished by lashes when the matter happened by chance, without the knowledge of [the girl's] father, and she did not ready herself for [the relations]. For this is an extraordinary and uncommon matter.

If, however, a person leaves his virgin daughter accessible for anyone to engage in relations with her, this will cause the entire earth to be filled with sexual immorality.25 For [ultimately], a father will marry his daughter and a brother his sister, [for in a sexually permissive society] a [girl] may become pregnant and give birth without knowing who the child's father is.

When a person has his daughter act in this manner, she is considered to be a harlot, and both the man and the girl who engage in relations should be punished by lashes, as [Deuteronomy 23:18] states: "There shall not be a harlot."26

[In such an instance,] the man is not required to pay a fine, for the Torah prescribed a fine only in the instance of seduction or rape. When a girl prepares herself [for relations] either on her initiative or on that of her father, she is a harlot. And the prohibition against harlotry applies both with regard to a virgin and a non-virgin.

For this reason our Sages stated that a girl who was reputed to have conducted herself immodestly while young is not entitled to a fine, as we have explained,27 for we can assume that she willingly opened herself to this experience.

The Rambam is employing the instance of the daughter of a bastard primarily as a figure of speech. The commentaries have noted that if in fact one has relations with the daughter of a bastard, in most instances the transgression of a negative commandment is involved, and the violator should be lashed rather than fined, unless a warning was not given.

Rav David Arameah explains that the intent is that the embarrassment suffered at the hands of a person of stature is more significant. The commentaries note, however, that in Hilchot Chovel UMazik 3:1, the Rambam states that the embarrassment suffered at the hands of a base person is more severe.

A fine is not required for a bogeret, because the verse mentions a na'arah, a younger maiden. Nevertheless, if one seduces a bogeret, no fine is required, because she willingly accepted any damages and embarrassment.

With regard to a minor who has dissolved her marriage through mi'un, we are obviously speaking of a girl who did not engage in sexual relations as a minor and was still a virgin. Although she is not entitled to a fine, since she was a virgin, she does receive damages. The commentaries have questioned the distinction between such a woman and a woman who is divorced after nisu'in, but is still a virgin.

He is not liable to make compensation for the embarrassment and damages because these women are not entitled to damages, because they have no financial worth; they would not be purchased if sold as slaves. (See Ketubot 32a, Bava Metzia 80a.) And with regard to embarrassment, since they are mentally incompetent, they suffer no embarrassment.

(Compare, however, to Hilchot Chovel UMazik 3:4, which states that a mentally incompetent person is not reimbursed for embarrassment, but a deaf mute is.)

This is a principle that applies not only with regard to the fine in question, but with regard to all k'nasot levied by the Torah. To explain: There are two types of monetary penalties levied by the Torah: a) nezek, damages - i.e., compensation for personal injury and/or loss of property - and k'nas, a fine, payment required by the Torah over and above what a person would be held liable for damages.

Although a person is liable for nezek when he makes an admission of guilt, he is not held liable for a k'nas unless his guilt is established by witnesses. (See Hilchot Nizkei Mammon 2:8 and Hilchot Geneivah 3:7.) Moreover, even if he admits his guilt and then witnesses come, he is not liable for payment of the k'nas.

As mentioned in the Kessef Mishneh, the Rambam's statements here are in direct contradiction to his statements in Hilchot Chovel UMazik 5:6, where he states that when a person admits injuring a colleague, but there are no witnesses who testify to the matter, he is not liable for the damages and the pain, but is liable for the injured's unemployment, embarrassment and medical treatment. (As reflected by the commentaries on Hilchot Chovel UMazik, this ruling is contested by many authorities.)

The Rambam's descendant, Rav Yehoshua, attempts to reconcile the Rambam's rulings, explaining that the laws governing the injuries suffered by a raped or seduced maiden differ from those governing other types of injury.

The Rambam is emphasizing that if the only issue were the k'nas, the man would not be held liable for an oath, because this oath was instituted to encourage the defendant to admit his guilt. With regard to the k'nas, this admission would be of no significance, because his liability is dependent only on the testimony of witnesses. Nevertheless, since there is also a claim for damages, and on that matter his admission would make him liable, he is required to take an oath.

As explained in Hilchot To'en V'Nit'an 1:1, whenever a person admits a portion of the claim against him, he is required by Scriptural law to take an oath stating his lack of liability to the remaining portion of the claim.

The Ra'avad differs with the Rambam, because, as mentioned in the following halachah, the payment for these damages goes to the girl's father and not to her herself. Hence, the situation resembles the case (Sh'vuot 38b) where a person claims "You owe my father 100 zuzim," and the defendant states, "I owe him only 50," in which instance the defendant is not required to take an oath, because the person making the claim is not the one to whom the money is paid.

It is possible, the Ra'avad continues, for the father to make a definite claim that his daughter was raped. But it must be established that this indeed was the case.

The Kessef Mishneh justifies the Rambam's ruling, explaining that this instance is unique. Although the money goes to the girl's father, she and not her father is considered to be the plaintiff.

When the girl manifests physical signs of maturity at the ordinary times, the period of "youth" mentioned here continues until she is twelve and a half. During that time, as mentioned in Hilchot Ishut 3:11, the father is entitled to consecrate his daughter and receive the money given for consecration, and to receive any benefits from her labor.

And not to any other heirs of her father's estate. With regard to the k'nas, the money is not considered to be owed the father until the defendant denies the debt in court (for if he agreed to the claim, he would not be obligated to pay the fine). Therefore, the money owed because of the fine is not considered part of the father's estate. See Or Sameach.

The Ra'avad differs with the Rambam on this point, stating that this money is considered part of the father's estate, and belongs to his heirs. The Kessef Mishneh and others, however, question the reason for the difference, noting that the Rambam's opinion is based on an explicit mishnah.

In all the instances mentioned, she leaves her father's domain and assumes independent responsibility for her own financial concerns. Although the event for which the person becomes liable took place before the girl has assumed financial independence, since a claim was not issued at that time, she and not her father (or his heirs) is entitled to the money.

Kin'at Eliyahu states that this supports the thesis of the Kessef Mishneh mentioned in the notes on Halachah 13, that the girl herself is the plaintiff.

But not to the payment for damages; that is awarded to her father. As mentioned in the notes on Chapter 1, Halachah 9, our Sages derived from the exegesis of Deuteronomy 22:29 that when a girl has been consecrated, she is entitled to the fine. But that applies only to the fine and not to the damages (Kessef Mishneh). Rabbenu Asher differs and maintains that she is also entitled to the damages, for she is no longer within her father's domain.

Naarah Betulah - Chapter Three

When a person issues a slanderous report concerning a Jewish maiden, and the matter is discovered to be false, he should be punished by lashing, as [Deuteronomy 22:18] states: "And he shall be flogged." The warning [for this negative commandment] is derived from [Leviticus 19:16]: "Do not go about as a slanderer among your people."1

He must also give her father 100 sela'im of pure silver.2If the girl is an orphan, the money is given to her.3

When a person issues a slanderous report on a girl below majority, or on a bogeret, he is not liable for the fine or for lashes. He is not liable unless he issues a slanderous report regarding a na'arah.4 [This is derived from Deuteronomy 22:15]: "[They will] present signs of the maiden's virginity." The word נערה, "maiden" is written in a full form.5

Cases pertaining to this law may be brought only in the time of the Temple, and in the presence of a court of 23 [judges], because there is the possibility that capital punishment will be involved.6 For if the accusation [brought by the husband] is discovered to be true, the girl must be executed.7

Cases involving rape or seduction, by contrast, are judged at all times in the presence of three [judges], as will be explained in Hilchot Sanhedrin.8

It is one of the Torah's positive commandments for the wife of a man who issued a slanderous report about her to remain married to him forever, as [Deuteronomy 21:19] states: "She must remain his wife."9 This applies even if she is blind or a leper.

If he divorces her, he transgresses a negative commandment, as the verse continues: "He may never send her away as long as he lives."10

[If he divorces her,] we compel him to remarry her, and he is not lashed, as explained with regard to a rapist.11 If, however, another man takes the initiative and consecrates her first,12 she dies, or he is a priest, who is forbidden to marry a divorcee, he should be punished by lashes for divorcing her.

If immodest behavior [on the woman's part is discovered], or it is discovered that she is forbidden to him as a result of a negative commandment, a positive commandment, or even [a Rabbinic commandment, such as the prohibition against] a sh'niyah, he should divorce her with a get.13

Why should the positive commandment [of remaining married to the woman] not supersede the negative commandment [of engaging in relations with an adulterous wife, or any other negative commandment] with regard to this man who issues a slanderous report or a rapist, and thus he should marry [or remain married to] this woman who is forbidden to him? For it is possible that she will not desire to remain married to him, and thus, both the positive and negative commandments will be observed.14

What is implied by the term "issuing a slanderous report"? That a person should come to court and say: "I engaged in marital relations with this maiden,15 and I discovered that she was not a virgin. I investigated the matter and determined that she committed adultery after I had consecrated her.16 These are the witnesses in whose presence she committed adultery."17

The court then listens to the words of the witnesses and examines their testimony. If the truth of the claim is substantiated, the girl is executed by stoning.18

If the [girl's] father brings witnesses who nullify [the testimony] of the witnesses,19 and it is determined that they testified falsely, [the witnesses] should be executed by stoning,20 [the husband] should be flogged, and he should pay 100 sela'im.21

This is what is meant by [Deuteronomy 22:17]: "This is [evidence of] my daughter's virginity" - i.e., these are the witnesses who nullify [the testimony] of the husband's witnesses.

If the husband brings other witnesses who nullify [the testimony]22 of the father's witnesses, the maiden and the father's witness should be executed by stoning.23 This is what is meant by [Deuteronomy 22:20]: "If the [accusation] is true." According to the Oral Tradition, the passage speaks of witnesses who nullify the testimony of other witnesses, and a third pair who nullify the testimony of the second pair.

When a man issues a slanderous report about his wife after she becomes a bogeret, he is free of liability for the lashes and for the fine, even though his witnesses testify that she committed adultery when she was a na'arah.24

If the accusations are proven true, [the girl] should be executed by stoning, even though she is a bogeret.25 [The rationale is] that she was a na'arah when she committed adultery.

Whenever a na'arah is not entitled to a fine if she was raped or seduced,26 [her husband] is not punished by flogging or by a fine if he issues a slanderous report about her.

In addition, when a non-Jewish girl was converted below the age of three or a maidservant was freed below the age of three,27 [her husband] is not punished by flogging or by a fine if he issues a slanderous report about her. This applies even if a girl was conceived before her mother was converted and born after she was converted. [The rationale is based on Deuteronomy 22:19]: "Because [the husband] defamed the virtue of an Israelite maiden." [Implied is that] she must be conceived and born as an Israelite.

A man is not held liable when [his] witnesses are discovered to have lied [in the following situation]. He consecrates a maiden and divorces her, consecrates her again and then issues a slanderous report about her, bringing witnesses who say that she committed adultery during the first time she had been consecrated.28

Similarly, a man is not held liable to be flogged or for a fine when [his] witnesses are discovered to have lied [in the following situation]. He issues a slanderous report about his yevamah, bringing witnesses who say that she committed adultery during the time she had been consecrated to his brother.29

Whenever a man is not liable [to be flogged and fined], he may divorce his wife if he desires to.30

A man is not liable [for these penalties] unless he engages in relations with his wife in the ordinary manner and issues a slanderous report about her, saying that she engaged in relations [previously] in the ordinary manner.31

If he engaged in anal intercourse with his wife, and said that he discovered that she was not a virgin,32 he is not liable [for these penalties]. He is, however, given stripes for rebellious conduct.33

Similarly, if he says, "I discovered that she was not a virgin," but does not say that she committed adultery after he had consecrated her,34 or if he claims that she committed adultery but did not bring witnesses, but rather the witnesses came on their own initiative, he is not liable [for these penalties]. Nevertheless, the witnesses are executed if their testimony is nullified.35

The Torah's statement [Deuteronomy 22:17]: "They will then spread the garment" is a euphemism. The intent is that they debate the private aspects of this matter.36

Similarly, [other expressions in the passage are to be understood non-literally. [For example,] "This is [evidence of] my daughter's virginity" means "these are the witnesses who nullify the testimony of the husband's witnesses."

The death penalty issued "if the [accusation] is true" is issued only when she has committed adultery after being consecrated [and is observed by] witnesses,37 as implied by [Deuteronomy 22:21]: "acting immorally [in] her father's house."38 Before she is consecrated,39 the Torah does not hold her liable at all, and a person who engages in relations with her is liable only for a financial penalty, whether he seduced her or raped her.

As is the case with regard to several other mitzvot, the passage in Deuteronomy obviously indicates that the transgression of a negative commandment is involved in making such slanderous remarks about one's wife. Otherwise, there would be no reason for the punishment of lashes to be given. There is, however, no explicit statement in that passage saying, "Do not make such statements." Therefore, it is necessary to find another verse that has a specific statement forbidding slander.

As mentioned previously, the term na'arah implies a specific time frame: the six months after a girl's manifestation of physical signs of maturity once she has reached the age of twelve.

As mentioned in the notes on Chapter 1, Halachah 8, the word na'arah, "maiden" is sometimes used by the Torah to refer to girls between the ages of three and twelve and a half. In this instance, however, the meaning of the term is specific.

Generally, the word נערה, maiden, is written in the Torah without the final heh. The inclusion of the heh is obviously purposeful and intended to teach a concept.

The Rambam's statements have aroused the attention of the commentaries, for in our Torah scrolls the word נערה in the verse cited by the Rambam lacks a heh. The Kessef Mishneh (based on Ketubot 40b and Rashi, 44b) notes that the Talmud derives this concept from Deuteronomy 22:19: "And he shall give it to the father of the maiden." In that verse, the word נערה is written with a heh in our Torah scrolls.

Cases involving capital punishment are judged by a court of 23 judges. These cases can by judged only when the Sanhedrin holds sessions in the Courtyard of Hewn Stone next to the Temple, as stated in Hilchot Sanhedrin 14:11-14. (Once the Sanhedrin ceased holding sessions in that place, even a court of judges with semichah cannot try capital cases.)

Chapter 5, Halachah 5:3. Based on Hilchot Sanhedrin 5:17 and the Shulchan Aruch (Even HaEzer 177:2), it would appear that in the present age, the court should hold a person who makes such statements responsible and compel him to reach a settlement with the father of the girl whose reputation he maligned.

Sefer HaMitzvot (Positive Commandment 219) and Sefer HaChinuch (Mitzvah 553) regard this as one of the 613 mitzvot of the Torah. Sefer HaMitzvot states that this commandment also includes flogging him.

There is a difference of opinion among our Sages whether or not all the following laws apply if the husband did not engage in marital relations with his wife. The Rambam follows the opinion that it is necessary for the couple to have engaged in marital relations. See the gloss of the Kessef Mishneh on Halachah 12.

I.e., the husband's claim is twofold: a) that contrary to his supposition, his bride was not a virgin; b) that she had committed adultery between the time he consecrated her, and the time he consummated the marriage. The latter dimension of the claim is more significant, because if substantiated, it involves the death penalty. The issue of a groom's claim that a bride presumed to be a virgin was not - without any knowledge of an adulterous relationship - is discussed in Hilchot Ishut 11:8-17. See Halachah 11.

The term used for nullify here, hazamah, has a very specific meaning. It refers to witnesses who testify that it was impossible for the husband's witnesses to testify with regard to the alleged adultery, because the two witnesses were together in a different place at the time the first witnesses testified that the adultery took place. If the second pair of witnesses state that they were in the same place as the first pair and did not witness the commission of adultery, the testimony of the first pair is nullified, but the first pair of witnesses is not punished. This is referred to as hakashah. See Hilchot Edut, Chapter 18.

Note the Minchat Chinuch (Mitzvah 553), who quotes opinions that maintain that if the girl's father brings witnesses who nullify the husband's witnesses through hakashah, the husband's witnesses are not punished, but the husband himself is required to pay the fine.

Generally, when a bogeret commits adultery she is executed by strangulation, a less severe means of execution. In this case, the woman is still given the penalty designated for a na'arah, as the Rambam explains.

The rationale for this ruling can be explained as follows: Most of the women mentioned in that halachah are not granted a fine, because we assume that they are non-virgins. For this reason, the husband should not have presumed that she was a virgin.

With regard to an aylonit, she is never considered to be a na'arah. Until the age of twenty, she is considered to be a k'tanah, and after twenty, she is considered to be a bogeret.

Ketubot, loc. cit., explains that relations with a yevamah are excluded from these laws, because the relevant passage quotes the girl's father as saying (Deuteronomy 22:16): "I gave my daughter to this man as a wife." This does not apply to the relationship between a yavam and a yevamah, for they are destined for each other by Divine decree.

The Mishneh LaMelech states that this statement applies with regard to the relationship between a yavam and a yevamah and similar instances, but does not apply with regard to the first law stated in this halachah. In that instance, the husband is not held liable because we are in doubt with regard to the law. For that same reason, he should be enjoined against divorcing his wife.

The Kessef Mishneh notes that this is a matter of debate in Ketubot 46a. Although the Sages advance the opinion quoted by the Rambam, Rabbi Eliezer ben Ya'akov states that the intent is that the girl's parents produce the sheet on which the couple engaged in relations. Since the Rambam follows Rabbi Eliezer ben Ya'akov's opinion as reflected in Halachah 8, it is difficult to understand why he uses the Sages' explanation in this halachah. The commentaries explain that the two opinions in the Talmud are not mutually exclusive, and Rabbi Eliezer ben Ya'akov would also accept the Sages' view.

Note also the gloss of Rav David Arameah, who states that when a husband brings witnesses who testify that the girl committed adultery, it is not sufficient for the parents to bring a blood-stained garment, for we fear that perhaps the blood came from another source. The testimony of witnesses, he explains, can be nullified only by other witnesses.

The Mishneh Torah was the Rambam's (Rabbi Moses ben Maimon) magnum opus, a work spanning hundreds of chapters and describing all of the laws mentioned in the Torah. To this day it is the only work that details all of Jewish observance, including those laws which are only applicable when the Holy Temple is in place. Participating in the one of the annual study cycles of these laws (3 chapters/day, 1 chapter/day, or Sefer Hamitzvot) is a way we can play a small but essential part in rebuilding the final Temple.

Featuring a modern English translation and a commentary that presents a digest of the centuries of Torah scholarship which have been devoted to the study of the Mishneh Torah by Maimonides.

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